Pembrey v The General Medical Council [2003] UKPC 60

Mental incapacity – medical treatment – professional misconduct

 

In the course of a sterilisation operation, P, a doctor, had decided that the insertion of an inter-uterine contraceptive device was necessary as a remedial procedure. The procedure resulted in a perforation of the uterus wall, which led to complications that necessitated a hysterectomy. In the case of two other patients, G and H, who were severely mentally incapacitated, P had decided to carry out hysterectomies on the basis of brief outpatient consultations. He obtained the consent of G and G’s mother, and H’s carer. The Professional Conduct Committee of the General Medical Council (PCC) found that P’s treatment of G and H had been irresponsible and inappropriate because he failed to properly assess whether G and H had the capacity to consent and to consider whether the purpose of the hysterectomies was for contraception or therapeutic reasons. Further, P had failed to seek court approval for the operations. The PCC decided that P’s should be erased from the register for serious professional misconduct and P appealed that decision.

 
The Privy Council found that, in relation to the sterilisation operation, P had determined on a procedure with a known risk of perforation as occurred, and without any proper medical justification. In the case of G, there were good reasons to explore precisely why a hysterectomy would be justified, yet P reached his conclusion that a hysterectomy was required only on the basis of a 25 minute consultation with G and her mother. It had been inappropriate for P to have had G and G’s mother sign an ordinary form for consent to an operation since G was 18 years old and her mother could not consent on her behalf and P had concluded that G was not capable of consenting to the treatment. The PCC was not correct in finding that P failed to properly analyse G’s capacity to consent, since P had formed the view that G did not have the capacity to consent and there was no evidence to contradict that assessment. However, P’s failure to follow the appropriate consent procedure was symptomatic of a deeper failure to think through his intended course of action. That was particularly deplorable as the operation had profound and irreversible effects. The key criticism of P’s conduct was that he could not have been sure that a hysterectomy was in G’s best interests without further consultation with colleagues and consideration of alternatives. If, as P contended, hysterectomy was the necessary treatment for G and another practitioner had been of that view, P could have performed the operation without seeking a declaration from the High Court. Accordingly the PCC was justified in finding that the charge on that point was proved.

 

In H’s case, P again failed to take adequate steps before deciding the appropriate treatment was a hysterectomy. P was required to take such steps regardless of the fact that the treatment may well have been in H’s best interests. In H’s case, approval from the High Court for the treatment would probably have been granted had it been sought. The PCC’s finding of professional misconduct stood and the decision to erase P’s name from the register was justified given that P had been subject to inquiries previously and that the present charges covered a period of nine years and a number of patients.

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